Democracy and freedom of speech

By Andrew L. Urban

Democracy is a complex system of governing, unavoidably full of compromises and contradictions. Amongst other things it guarantees freedom of expression and freedom of the press. One can feed into the other. The media can report politically dissenting opinion and the Government will not whisk you away into a secret cell for either punishment or re-education. You may be derided and ridiculed by others, but your family is in no danger. Not from the authorities, anyway …

But opinions can have adverse consequences, both personally and professionally. So there are libel laws and laws against swearing in public. (But so far, there are no laws against lying.) There are also laws against racist remarks, as embodied in the Racial Vilification Act, whose Section 18C says:

Offensive behaviour because of race, colour or national or ethnic origin

             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                    (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The problem with S18C is that its good intentions lead it along the path to hell; 1(a) is especially dangerous in a democracy, because offence can be taken for no good reason by otherwise reasonable people. This inherently anti-democratic clause is made doubly unstable by the wording; “the act is reasonably likely, in all the circumstances,”. Here is a gaping hole into which lawyers will vanish with glee.  

The Act was used to haul Andrew Bolt before the court in March 2011 for remarks that defy the ‘reasonably likely in all the circumstances’ test. That’s my reasonable opinion; it is also the opinion of the 500 or so people who turned up in Melbourne to listen to speakers including Paul Howes, Dr David Kemp, Michael Kroger and Professor Jim Allan (Garrick Professor of Law, University of Queensland) at a Free Speech forum organised by the Institute of Public Affairs.

The plaintiffs in the case claim to be aggrieved by several of Bolt’s newspaper columns that cast doubt upon the authenticity of their Aboriginality.

Prominent Jewish commentator Ted Lapkin says of this [1]: “On a personal level, I resent both the Bolt plaintiffs and the law that underpins their case – Paul Keating’s Racial Hatred Act 1995 – because they implicitly seek to infantilise me.

I am a Jew, and throughout my life I’ve copped a fair bit of anti-Semitic flak. But so what? Am I such a tender flower that I require the aegis of the state to defend me from the blather of the ignorant and the malign? Am I a child who must be cosseted from harsh words and ethnic insults?

No way. I hereby submit a public waiver that declares such protections unwanted and unappreciated. I’ll stand on my own feet and slug it out myself in the arena of public debate.”

He also says: “For freedom of expression to have any real meaning, we must guarantee it to those whose views we despise. That benighted category includes neo-Nazis, Islamic radicals, sheet-wearing Klansmen and anyone else we may dearly love to hate.”

The plaintiffs’ response should have been to respond to Bolt’s assertions with some details, not seek legal protection on the grounds of being offended. In this Kafkaesque scenario, Andrew Bolt might well turn around and bring a case of racial vilification against his plaintiffs on the grounds that the plaintiffs have singled his comments out for action, only because he is a white Australian.

There are quite some limitations on freedom of speech which society endorses for its own security, such as bomb construction techniques or advocating murder. But there is still no legal recourse against public stupidity, which is by far the most offensive ‘act’ of which we see too much.


[1] National Times (, April 1, 2011

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